Judge her on merits: Roxon's proposed reforms well constructed

Professor of Law at the University of NSW

A full brief ... Nicola Roxon can add many reform processes inherited from her predecessor, Robert McClelland, and some now initiated by herself. Photo: Alex Ellinghausen

Nicola Roxon came to Parliament after winning the prize for the top law graduate of her year and working as a High Court judge's associate. It was no surprise that she sought to become the nation's first female Attorney-General and, now that she has the job, is intent on making her mark.

She certainly has a full brief. In the High Court, Roxon must defend the government's plain packaging tobacco laws, and could face challenges to the mining and carbon taxes. She may also have to deal with a looming High Court decision on the school chaplains program. In that case the court may restrict the federal government's power to spend in a way that introduces an unfortunate set of new complexities into Australia's federal system.

Roxon can add many reform processes inherited from her predecessor, Robert McClelland, and some now initiated by herself, including major changes to contract law. She will also have a lead role in the referendums promised for next year on recognising Aboriginal peoples and local government in the constitution.

On top of all this, the Attorney-General has announced long overdue changes to complaints against judges. At present, the law fails to provide any means by which a person can lodge a complaint against one of Australia's 151 federal judges.

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As a result, complaints may never be resolved and people who already feel aggrieved can be left bitter and angry. The system can also work against judges because there is no means of dismissing vexatious or frivolous claims made against them.

Change is limited by the constitution. Section 72 says that federal judges can be dismissed by both houses of Parliament on the ground of ''proved misbehaviour or incapacity''. They cannot otherwise be removed before they reach the mandatory retirement age of 70.

A complaints scheme could infringe Parliament's monopoly on dismissing judges and undermine the independence of the judiciary. The Attorney-General has introduced two bills into Parliament that have been carefully drafted to navigate these problems.

One bill provides Australia's first mechanism for resolving complaints against federal judges, other than members of the High Court. The law allows people to make complaints about a federal judge to the chief justice of the court. A Conduct Committee can then investigate and report on the complaint.

If the complaint is well founded, the judge may be disciplined using measures that the Chief Justice ''believes are reasonably necessary to maintain public confidence in the Court'', including a ban on the judge hearing further cases. The bill does not enable the judge to be dismissed, as this power is reserved solely to Parliament.

The second bill deals with Parliament's power to dismiss judges. At present, the law does not provide any guidance on how this is to be done. Each case must be dealt with on an ad hoc, and potentially partisan, basis.

This is problematic because Parliament may dismiss a judge only where ''misbehaviour or incapacity'' is ''proved''. Parliament must therefore make a decision about whether to dismiss a judge based upon facts and evidence, but it has not set down a way of obtaining this information.

These problems came to the fore on the only occasion that Parliament considered dismissing a High Court judge, following allegations of misconduct against Justice Lionel Murphy in the mid-1980s.

Murphy was ultimately acquitted in court, but Parliament struggled unsuccessfully over 2½ years to resolve the matter through two inconclusive Senate committee inquiries and then a Parliamentary Commission of Inquiry to review all aspects of Murphy's life. His death in 1986 ended the commission.

The Murphy saga provided a strong case for Parliament establishing fair, non-partisan and consistent procedures for determining whether a federal judge should be dismissed. Some 26 years later, Roxon's second bill finally does this by providing that a resolution of each house of Parliament can establish a Parliamentary Commission to look at allegations of misbehaviour or incapacity against a federal judge.

The commission would consist of three people nominated by the Prime Minister after consultation with the Opposition Leader. It would have broad powers to investigate whether there is evidence that misbehaviour or incapacity can be proved, before reporting to Parliament.

Both bills are well constructed, and it would be surprising to see either attract significant opposition. They are an early, important piece of Roxon's agenda as Attorney-General.

George Williams is the Anthony Mason Professor of law at the University of NSW.